IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE th ON THE 11 OF DECEMBER, 2024 MISC. PETITION No. 5546 of 2023 KAMLESH SHARMA Versus RAMKALI AND OTHERS Appearance:

Shri Prashant Sharma - Advocate for the petitioner.

ORDER Reserved on 11/12/2024 Delivered on 13/02/2025 ----------------------------------

The present miscellaneous petition under Article 227 of the Constitution of India is taking exception to the order dated 12.8.2023 (Annexure P/1) passed by the Principal District Judge, Bhind , whereby the appeal preferred under Order 43 Rule 1 CPC by the plaintiff/defendant no.1 has been allowed and order dated 26.4.2023 passed by the trial Court whereby an application of plaintiff under Order 39 Rule 1 and 2 CPC was allowed, has been set aside.

2. Brief facts of the case are that a suit for declaration, permanent injunction and specific relief under Section 38 of the Specific Relief Act has been preferred by the plaintiff on the basis of submissions that the ancestral property of plaintiff situated as per the particulars given in the plaint, which was in Signature Not Verified possession and plaintiff's husband has erected boundary over his part of the land having area 40x 50 ft. After the death of Kashiram his 6 sons and 1 daughter inherited the property out of which 3 sons died issueless and their share of property devolved in Ramswaroop, Baburam, Mataprasad and Kailashi and after the death of Ramswaroop his wife Ramkali inherited the property and thereafter defendant no.1 has got the sale deed of adjoining land of disputed portion of land of Survey No.56 and has raised the construction over it by digging a hole. 3. Alongwith plaint, an application under Order 39 Rule 1 and 2 CPC was preferred seeking temporary injunction. The learned Civil Court vide order dated 26.4.2023 has dismissed the application. Being aggrieved by the order dated 26.4.2023 the plaintiff filed an appeal under Order 43 Rule 1 of CPC before the learned Appellate Court which was allowed vide order dated 12.8.2023 and held that learned Civil Court has not considered the documents available on record and has not consider the facts pertaining to the joint property and the sale made by the co-owner of the property and further merely on the basis of the sale deed in favour of the defendant has passed the order. Being aggrieved by the order dated 12.8.2023 the present misc. petition is being filed.

4. Learned counsel for the petitioner has argued that the plaintiff has not impleaded other co-owner of whose ownership he claims the property, and therefore, the order granting injunction cannot be sustained. The learned Appellate Court ignoring the documents filed by the petitioner has granted temporary injunction vide impugned order which is contrary to the provisions of law and deserves to be set aside.

5. Heard learned counsel for the parties and perused the record.

6. This court has carefully gone through the order passed by the court below and prima facie, it is found that the learned Appellate Court has not rightly Signature Not Verified taken into account the aspect regarding prima-facie case, balance of convenience and irreparable loss which apparently lie in favour of the petitioner.

7. Thus, prima facie this Court finds that till the dispute between the parties is resolved by the trial Court, it would be expedient for the parties to maintain status-quo with regard to suit property as it exist today.

8. This Court looking to the scope of the controversy deems it expedient to direct trial Court to conclude the trial as early as possible preferably within a period of maximum one year. It is also directed that no undue adjournment shall be given to the either of the parties.

9. With the aforesaid direction, the present petition stands disposed off.

(MILIND RAMESH PHADKE)

JUDGE (aspr)

Signature Not Verified